Dissertations / Theses on the topic 'Responsabilité contractuelle'
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Bousquet, Jérémy. "Responsabilité contractuelle et responsabilité extra-contractuelle en droit administratif." Thesis, Montpellier, 2017. http://www.theses.fr/2017MONTD007.
Full textEven today, the contractual and extra-contractual liabilities differ because of their regime and they are considered as two different orders different from the public responsibility, The coexistence of such duality in administrative law involves certain practical difficulties as for the choice of the regime to be applied to such or such dispute because exist some situations where the question of the foundation of the indemnitaire action is not firmly solved and gives way to uncertainties and ambiguities. It is essential to remedy it because of the unsatisfactory consequences which they can take in particular on the requirement of legal security. This necessity is particulary true as the state of the law is rich in situations of interaction between liability regimes all the times when can overlap the domain of contractual liability and that of the extra-contractual liability. The borders between liability schemes seem so porous and unstable. Many hypotheses be classified cannot without hesitation in the one or other one of the domains of responsibility so that certain contradictory case law solutions can appear: in front of the necessity of opting for a liability scheme, the courts have to choose, sometimes artificially, a liability scheme, solutions subject to criticisms.These problems bound to the existence of a duality of regime demonstrate the importance to specify and to plan upstream the liability scheme applicable to every dispute and invites us to question us about the current situation of the duality in public law. It is advisable to resist the temptation to establish a unification of the regimes of the contractual and extra-contractual responsibilities which would seem artificial, to prefer a work of demarcation, more coherent and satisfactorier, of their respective domain with regard to certain concerns: legal security, equal treatment, but also respect for the held commitment and for the specificities of the contractual regime. So, the research for an extension of the domain of the contractual liability to all the harmful situations intervened on the occasion of the execution of a public service contract should allow to reach such goal
Courtiau, Marie-Noëlle. "Responsabilité contractuelle et inexécution : (pour une autonomie de la responsabilité contractuelle)." Paris 1, 2001. http://www.theses.fr/2001PA010260.
Full textBaele, Vincent. "Le préjudice dans la responsabilité contractuelle." Chambéry, 2008. http://www.theses.fr/2008CHAML064.
Full textOum, Oum Joseph Frank. "La responsabilité contractuelle en droit administratif." Toulouse 1, 2008. http://www.theses.fr/2008TOU10058.
Full textThe contractual liability is traditionally heard like the obligation to make good the damage born of the inexecution of the contract. With the ell of the administrative law, the contractual liability deserves to be redefined, not as well in its characters as in its contents. Residual category in private law, it takes the form of an extensive category in public law, embracing a diversity of formulas. Therefore, it accomodates the manifestations of the dynamic balance of the public service contract within a framework intended to specify them and improve the adaptation of the right to reality. But, the contractual liability especially seems an instrument of conciliation, which justifies the richness of its demonstrations and the permanence of its application in administrative law : on the one hand, it devotes the obligatory force of the contract - and its corollary, the immutability of the contractual clauses - while letting remain measurements there bearing reached ; in addition and in a general manner, it sanctions the failures with the contract all while absorbing them in the legal order interns with the contract
Nlend, Jules Roger. "La responsabilité civile contractuelle du dépositaire salarié." Nancy 2, 1994. http://www.theses.fr/1994NAN20014.
Full textAccording to the 1915 article from the civil code, a depositary is someone who is chiefly entitled to have charge and to make restitution of a property, entrusted by his contractor. But, this double obligation meant by thee legislator, is open to criticism, because it is practically impossible to separate one of these two obligations from the other. The depositary keeps the property he receives so that he can give it back and the restitution supposes a non-failing watchfulness. In fact, the above-mentioned debtor is bound to a general obligation of carefulness and diligence. Consequently, the depositor who wants to involve his contractual responsibility must give evidence of his contractor's fault. When the evidence is given, the salaried depositary (whose fault is more severely apprehended than a non-salaried depositary's) can render himself liable two kinds of sanctions. - Pecuniary sanctions; he’ll have to pay for damages. - Reparation in kind; that's to say either he’ll be compelled to make restitution of the property he revived or (if ever he has lost the property he received, if it is an interchangeable property) he’ll have to make restitution of a property of the same
Guyomarch, Nathalie. "L'équité dans la responsabilité administrative extra-contractuelle." Toulouse 1, 2005. http://www.theses.fr/2005TOU10012.
Full textEquity contributes to a balance of interests between public and privative persons by regulating administrative responsability law in the determination of regimes and their application. In responsability without fault as in responsability with fault, equity represents a factor of extension and limit to the obligation of compensation. Appearing as an element of coherence of administrative responsability, equity constitutes a partial explanation of positive contingent law
Mounyemb-Tenwo, Simon. "La responsabilité contractuelle du médecin libéral au Cameroun." Paris 8, 1993. http://www.theses.fr/1993PA080870.
Full textIn cameroon, does setting up in practice as a liberal doctor constitutes a contractual link? the evolution of jurisprudence does not allow us to anower positively, however legal evidences prove that a liberal doctor is bound to his patient by a contractual link and that the former is liable to his patient for his faults. However, in the absence of specific legal rules and the lack of a jurisprudence likely to confirm this link, our study tries and show that an evolution of jurisprudence is necessary to stablish with certainty the contractual responsibility of the liberal doctor to wards his patient
Le, Monnier de Gouville Anne. "La responsabilité contractuelle : droit comparé français et anglais." Montpellier 1, 1997. http://www.theses.fr/1997MON10027.
Full textChristophe, Mazard Julie. "La responsabilité contractuelle de droit commun des constructeurs." Toulouse 1, 2005. http://www.theses.fr/2005TOU10064.
Full textBuilders contractual liability of law of universal application is naturally before the acceptance of work. It is, indisputably, exclusive, since the specific liability, provided by legislator in 1978, only takes effect as from the acceptance. This contractual liability, laid down by article 1147 of the civil Code, enables to indemnify damages occured before the acceptance, resulting from the non-performance or bad performance of contracts, concluded with the owner of a construction project. This system applicable to builders contractual liabillity of law of universal application do not raise any particular problem in that case. Even though the law of 1978 appears to distinguish the contractual period, which develops before the reception, from the period of legal guarantee, which develops after, there are many cases in which the contractual liability of law universal application will be implemented after the acceptance. That is the case, particulary when damages, for which it is claimed compensation, do not take on conditions of application of specific guarantees. The doctrine and the case law wonder about the rank of contractual liability of law of universal application in the field of builders liability. Regarding the case law, the contractual liability seems to occupy a not inconsiderable rank, although it stays subsidiary in relation to legal guarantees. So, the existence of builders specific guarantees do not completely overshadow the law of universal application of contractual liability, which regime is going to be affected by an influence modeled on legal guarantees
Abras, Johann. "L'aménagement conventionnel anticipé de la responsabilité extra-contractuelle." Le Mans, 2007. http://www.theses.fr/2007LEMA2002.
Full textThe rules of extra-contractual liability being marked by the jurisdictions of public policy’s seal, any agreement wich aims to depart from these rules is prohibed when it is reached before the advent of the damage. Therefore, whether they be a third party or a contracting party, the agents can’t restrict or increase the extra-contractual liabilities that they incur, nor can they define in advance the compensation given to the potential victim or modify the statute of limitations delay in liability. This position, fragile because isolated in time and in space as attests the history of law and comparative law, is inaccurate. Effectively, only the liabilities incurred by malevolence and for physical damage interest a public policy that defends, in the law of extra-contractual liability, the respect of morality and justice. The validity principle of anticipated conventional adjustment of extra-contractual liability, legitimate in regards to economic analysis of law can henceforth be admitted in these limits. The agreement, whose mechanics stand on the constitutional mission assumed by the rules of liability, must be able to produce results in law, provided however that he who capitalises on it establish the unequivocal consent of his partner
Rubio, Marie-France. "La solidarité contractuelle." Avignon, 2005. http://www.theses.fr/2005AVIG2005.
Full textDuhen, Willy. "La responsabilité extra-contractuelle du fournisseur d'accès à Internet." Thesis, Aix-Marseille, 2012. http://www.theses.fr/2012AIXM1052.
Full textInternet Service Providers are major actors of the Information Society. They offer connections, controls access points, and can also identify their users. Their many liabilities result from their multiple functions as technical services provider, data controller or performers of judicial orders. These legal obligations are numerous and sometimes overabundant. In spite of an existing and specific liability status, the very notion of "Internet service provider" still remains legally undefined. This lacuna entails a profusion of legal status imposing an ISP status to players for which the main activity is not to provide an Internet connection : Universities, companies, individuals. From then on, criminal, civil and administrative liabilities multiply and create an instable, obscure and even abstruse status. This lexical and legal scattering is even worsened by the functional application of the electronic communications and Information Society legal framework to access providing activities. It is then necessary to unify the legal regimes associated to those activities according to stabilized legal concepts. This reconstruction will inevitably affect the Information Society legal framework as a whole. Eventually, it will open on a possible ground for the electronic communications legal framework
Viaud, Florent. "La relation contractuelle de fait." Chambéry, 2010. http://www.theses.fr/2010CHAML017.
Full textThe factual contractual relation is the conceptual translation of the material relatiy of contract. Its identification requires beforehand to admit that the contractual phenomenon is not only a contractual process and that it includes a material reality which is synthetised by the contract's purpose. Choosing a teleological definition leads to consider the contract as a legal tool produced by the law and put at the disposal of the parties to accomplish a concrete action. Following this reasoning, the material operation is not the contract's content but its economic function which, undertood materially and objectively, may be given a functional autonomy. However, not every contract may have its material reality produce the corresponding relation. The latter draws its substance from the material link which unites the individuals in the effective and durable completion of the economic operation which requires their cooperation. Its specific structure and independance from the contract makes the factual contractual relation an original concept. But the factual contractual relation should not be reduced to a concept. It is also an instrument with specific functions following concrete purposes. Its functions both work as substitutes and justifications. From its appearance, the factual contractual relation obtains skills enabling it either to substitute for a concept which legal meaning matches reality, or to justify it when its cause is inadequate. Its purpose are protective and compensatory. Because its is the material duplication of the contrac, the factual contractual relation is able to give a cause to certain protective provisions which are applicable to the contract wich gave birth to the relation. The admittance of a factual contractual relation also enables the parties, if need be, to appeal to the contractual liability in its compensatory function
Juen, Emmanuelle. "La remise en cause de la distinction entre la responsabilité contractuelle et la responsabilité délictuelle." Thesis, Dijon, 2014. http://www.theses.fr/2014DIJOD006.
Full textIf contractual liability and tortious liability are considered today as being the two systems of civil liability, they are two distinct forms because their rules differ. Unity of nature, duality of rules : this is how the distinction between contractual liability and tortious liability is currently presented. However, this form of distinction is contested both regarding the unity of the nature and the duality of rules. The debate is as exciting as it is embarrassing, notably due to the legal insecurity it conveys. On the eve of the reform of contract law, it seems necessary to review this recurrent debate and thus reconsider once again the distinction between contractual liability and tortious liability. This present research suggests that if the former is effectively a reality, the latter is only an illusion. That being so, the distinction between contractual liability and tortious liability disappears. As a result of the inexecution of a norm, civil liability reveals its oneness, unless the twilight of this distinction is the dawn of another distinction, more relevant, between simple liability and aggravated liability
Farnocchia, Serge. "L'excuse contractuelle : étude de l'inexécution fortuite du contrat." Aix-Marseille 3, 1994. http://www.theses.fr/1994AIX32011.
Full textThe aim of this thesis is to study the different causes of exemptions of contractual liability through their nature, their features, and their effects. The features of the excuse can be analysed through the concept of "act of god", but also through other causes of exemption, the existence of which only becomes clear after ascertaining the different degrees of contractual duty. The effects of the excuse can be both an extinguishment or a modification of the obligation : first, the excuse can cause an extinguishment by the cancellation of the different terms relating to the breach of contrat, or by the cessation of the contract itself so that it is no longer binding for any of the parties ; it can also cause a modification when the parties to the contract or a third party decide that the contract will continue while being affected by a delay or a change of the obligation
Coëffard, Paul. "Garantie des vices cachés et "responsabilité contractuelle de droit commun"." Poitiers, 2003. http://www.theses.fr/2003POIT3005.
Full textHecart, Charles. "L'inexécution contractuelle : fait générateur de responsabilité délictuelle envers les tiers." Paris 2, 2005. http://www.theses.fr/2005PA020105.
Full textSeddiki, Oum Keltoum. "L'évolution de la jurisprudence de la responsabilité contractuelle au Maroc." Perpignan, 2005. http://www.theses.fr/2005PERP0638.
Full textContracts are made to be performed, according to the saying “pacta sunt servanda”. But if they are not performed correctly, the creditor who can't get the benefit due to him, will demand a compensation, that is to say the granting of damages, making use of the other contracting party's liability. This liability can only be used if three conditions are present : a damage, a prejudice and a causal relation. Besides, since the obligation itself only finds its origin in the contract and the will of the parties, it is acknowledged that these parties may anticipate and organize the consequences of non-fulfilment. In advance, they can estimate the amount of the compensation by setting a lump sum of damages with a finality clause. Thus, they can change the range of their liabilities, either by fully setting aside the liability of the debtor with a non-liability clause or reducing it with a restrictive clause of liability
Pizarro, Wilson Carlos. "Etude critique sur la responsabilité contractuelle en droit positif chilien." Paris 2, 2003. http://www.theses.fr/2003PA020002.
Full textSontag, Katia. "L'assurance de dommages des communes, approche contractuelle." Nice, 2003. http://www.theses.fr/2003NICE0062.
Full textInsuring the risks of towns and cities has been a practice long in use. With decentralisation, and the ensuing reinforcement of the power of local authorities, this type of insurance can now be found nationwide. Despite these facts, the matter has rarely been studied or accounted for, nor has the relationship between the legal status of urban communities and the laws applicable to insurance policies. It appears however, that the implmentation of these different legal statuses, emerging from the study of insurance policies of urban areas, has proven to be imperfect and even disjointed. In practice, the consequence tends to be the domination of the insurance company. Recent changes, such as the inclusion of insurance policies in the scope of public market regulation and the submission of this type of contract to administrative law, offer the opportunity of attempting a more global approach of this contract and a new juridical qualification with the laws thereof
Abid, Mnif Salma. "L'option entre la responsabilité contractuelle et la responsabilité délictuelle : étude comparative des droits français et tunisien." Paris 1, 2011. http://www.harmatheque.com.scd-rproxy.u-strasbg.fr/ebook/9782343034041.
Full textPrud'homme, Patrick. "La réparation du préjudice non-corporel en droit français et en droit anglais : un aperçu des rapports de la responsabilité contractuelle et de la responsabilité délictuelle." Paris 2, 1990. http://www.theses.fr/1990PA020166.
Full textDamages for non-personal injury leads to the analysis of three major themes : first, the remoteness of damage which gathers the french concepts of causation and foreseeability; second the assessment of damages which includes the reliance and expectation interests, the "perte subie" a,d tje "gain manque" and the methods of assessment; third, the action for damages of a third party beneficiary of a contract, the action in tort in english law will compared oto the action in contract in french law. Before, the field and the technical differences between tort and contract will be compared
Ouedraogo, Ferdinand. "La responsabilité civile du mandataire." Nancy 2, 1991. http://www.theses.fr/1991NAN20008.
Full textAccording to Savatier: 'the representative's liability would appear to be the logical consequence of its function'. Underlining the importance of the representative's civil liability, given the widespread use of agency agreements. The recent evolution of the agency agreement in its conception as regard the content's. It is interesting to note how the practice relating to agent's liability, has changed even though the text has remained the same in the code civil. Thus the study demonstrates, first the desire to protect the person who gives the order by way of imposition of civil liability of the agent representative more severe for the professional representative in three respects: the acceptance of a liability based on subjective criteria, and exceptionally objective, thus any contractual responsibility. The constant objective being the protection of the third party: the case law admitting the tortious liability of the representative, even when outside implied powers. But, 'something is not necessarily what it should be' (Le Tourneau's formula). Thus the contractual liability of the representative towards the thirds party could be the desirable common law rule
Sorrente, Jean-Yves. "La responsabilité de l'arbitre." Lyon 3, 2007. https://scd-resnum.univ-lyon3.fr/out/theses/2007_out_sorrente_jy.pdf.
Full textArbitration is a contractual institution. It is usual to approach questions of the arbitrator's responsibility only under the contractual aspect. Nevertheless, the arbitrator fills a jurisdictional function that must be preserved of exterior interference. The responsibility of the arbitrator concern just as well many domains: disciplinary aspect, criminal and civil liability. Also, the study of his responsibility must she approach these different aspects, all while taking account of the necessary immunity of which must profit the arbitrator to accomplish his mission, without for as much to enjoy a total impunity
Karam-Boustany, Lara. "L' action en responsabilité extra-contractuelle devant le juge administratif français." Paris 2, 2001. http://www.theses.fr/2001PA020031.
Full textBroche, Christophe. "La notion juridique de dommage en droit de la responsabilité civile extracontractuelle." Chambéry, 2010. http://www.theses.fr/2010CHAML018.
Full textThe notion of damagr is constitued first of all on a lesion. Distinguished from the loss, this last one bases on an interest and reveals a dynamism through the elements which allow to characterize it. The study of the notion of lesion allows to define its role and its place within the notion of damage. However, if it takes inevitably support on the lesion, the notion of damage cannot be reduced to this one. The sense of identity of the damage and its dynamism appear in the capacity of the notion to be situated in the heart of the tension which becomes established between opposite interests. The notion can then define itself as the breaking point of the balance between conflicting interests. By basing on the balance of the strenghs, the notion of damage reports the particular context of the relations of neighborhood. In this environnement, because of the permanent friction between the rights opposite, the coexistence is conceivable only by trade-off in the exercise of the interests. The lesion is repairable only if this one translates, by its intensity, or the exercice of the rival interest, an imbalance in the relation. This one characterize then the damage and the calls a repair. The variety of the interests allows besides adapting the notion of damage to the situations of risk by inviting to look for the balance in the conflicting interests. But it is on the occasion of the implementation of the repair that the utility of the dynamaic character of the notion shows itself complety. The damage being the result of an imbalance between the interests, the abolition of the abnormality of the relation between the divergent interests authorizes and justifies the use of measures at the same time on the hurt interest and the conflicting interest. Ordered with the aim of restoring the balance and proportioned, the measures allow assuring the long-lasting coexistence of the interests in the situations where the tension between these last ones is permanent
Grégoire, Marie Annik 1971. "Liberté, responsabilité et utilité : la bonne foi comme instrument de justice contractuelle." Thesis, McGill University, 2008. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=115645.
Full textAs part of this study, we identify certain principles that are fundamental in the theory of contract: notably, commutative justice, contract commutability, subjective rights and legitimate interests. We establish the relationship between each of these basic concepts to conclude that to be consistent with the principles of commutative justice, contract commutability shall not be based on a monetary equivalent of benefits but on the respect of a standard based on peaceful coexistence of rights and interests. It consists therefore of a normalization of contractual relations which ceases to be purely subjective. This finding leads to several inferences: the addition of the circumstances of the execution and termination of the contract, rather than simply its creation, to the possibilities of judicial review, a better legitimization of such review and the recognition of the principle of good faith as a privileged instrument for a fairer contractual commutability. Moreover, the last part of our thesis is devoted to examining judicial practice interventions based on good faith in order to illustrate the principles expressed in the study.
Ibrahim, Youssef Ali. "Contrats internationaux d'Etat et responsabilité contractuelle au regard du droit international public." Nice, 1985. http://www.theses.fr/1985NICE0013.
Full textMuniz, Arguelles Luis. "Les clauses modificatives de la responsabilité contractuelle en droit français, américain et hispanique." Paris 2, 1989. http://www.theses.fr/1989PA020087.
Full textThe author first examines the legal nature and economic consequences of contractual liability modification clauses, distinguishing them from penal clauses, insurance and warranty contracts, transactions and both venue and applicable law clauses, among others. The advantages and disadvantages of these clauses in economic and equitable grounds are also analyzed. The second part of the thesis examines rules governing the formation, validity and construction of the clauses as well as their effects as to main parties and third parties. The analysis is made from a comparative perspective. Particular attention in placed on both national and international legal trends to limit the validity of clauses, specially as to workers, consumers and personal damages. The final part of the thesis examines the development of the various national legal rules in historic and philosophic perspective and concludes by questioning the degree to which the will theory of contracts has been modified over time and if, at least as far as contractual liability modification clauses are concerned, the current trend is to adopt rules as to contractual equality which parallel preindustrial legal rules
Vignon-Barrault, Aline. "Intention et responsabilité civile." Le Mans, 2000. http://cyberdoc.univ-lemans.fr/theses/2000/2000LEMA2003.pdf.
Full textRouvière, Frédéric. "Le contenu du contrat : essai sur la notion d'inexécution." Aix-Marseille 3, 2004. http://www.theses.fr/2004AIX32027.
Full textShow as the set of engagements be able to reach the object of the parties, i. E. Negotium, contents of contract express the double aspect of breach of contract, its qualification on the one hand and the possibility to ascribe it to someone on the other hand. Contents of contract are a way to measure breach of contract: that fixes the result to reach and the importance of the means to use as to complete it. Contract's remedies keep the permanence of this balance. Compensation in contracts tends to establish the situation that would have resulted in case of execution. Despite an apparent unity, the difference with the tort's Damages is appreciable. This one tends to restore the last situation to the tort. Will's agreement does not submit to this kind of retrospective logic. This one expresses the aims of parties. Contents of contract do not reflect exactly the future they try to bring under their control
Monnier, Laurence. "L'avenant au contrat." Toulouse 1, 1999. http://www.theses.fr/1999TOU10007.
Full textA contract having often ascendancy over time, its initial physiognomy is frequently touched up by the parties during its existence, trough an additional clause. It is then paradoxical to notice that if additional clause are numerous in practice, no juridical study has really ever been dedicated to the subject. Therefore, as an ill-defined term, it is often ill-advisedly used. In order to define it, the questions of its juridical nature and its role in the adaption of a contract had to be addressed. Thus, the additional clause is the agreement that allows parties of a common accord to adapt their contract during its existence while maintaining the original juridical link. In this sense, an additional clause can only be the medium of a non-substantial adaptation of the contract. The study of its juridical system is also delicate to apprehend, considering the diversity of contracts it can be made out for. But insofar as the context always remains the same (the voluntary adaptation of an existing and uphold contract by the parties), it was interesting to try to elaborate a general juridical system of the additional clause. This study has shown that even if it is distinct form the other provisions of the contract, would it only be because of its hasty conclusion, it doesn’t present a sufficient autonomy to be an independent contract. In this sense, and with a few exceptions, its existence and its execution are closely linked to the lot of the initial agreement which remains otherwise the principal contract
Joannès, Jean-Marc. "Le préjudice immatériel dans le contentieux de la responsabilité extra-contractuelle de la puissance publique." Paris 2, 1998. http://www.theses.fr/1998PA020021.
Full textOpposed for a long time to indemnify damages of which we are not certain enough, the french administrative judge now compensates immaterial damage, according to the principle of the full compensation of damage. This advance is all the more remarkable as immaterial damage, assessed in terms of lost wages, lost opportunities or the violation of individual rights, is another facteur of uncertainty. Immaterial damage, more than the tangible damage, is the lost of opportunity because of administration incompetence. Secondly, the circumstances an situation of the victimmust especially be taken in consideration. Although immaterial damage covers a wide range of cases, there are three main categories. It can be financial consequences of an initial material, physical or psychological injury. It can be financial consequences of an illegal act or lack of action. Thirdly, it can be the result of a serious violation of individual rights. The assessment of immaterial damage follows a finalist reasoning which denotes the will or the imperious necessity to only consider the tangible aspects of each case. Three elements are considered when assessing the case. Fairness and the desire to punishthe administration are two of them. The third one is the curbing of the amont of the damages inthat the state is not supposed to be a safety netfor financial failures. Financial compensation for immaterial damages contributes to the raising of the moral standards of public administration acts and reflects the ability of the judge to adapt to social changes
Conte, Henri. "Volonté et responsabilité civile." Thesis, Toulouse 1, 2017. http://www.theses.fr/2017TOU10039.
Full textCivil liability law is constantly evolving, and yet no major reform has ever taken place since the promulgation of the Civil Code. Many projects have accumulated without any actual legislative outcome. In 1804, the legislator bequeathed broad general principles which proved as fruitful as Portalis advocated in his preliminary discourse. Contractual liability has evolved in such a way that it has become an important basis for remediation of bodily damages. Today, it allows for the more or less effective reparation of prejudices but remains criticized in terms of legal basis and scope. Extra-contractual responsibility, for its part, has been largely enriched by case law and now fulfills functions it was initially not designed to address. The purpose of this study is to examine the concept of responsibility through the lens of the will. What role does the will play when it comes to contractual and extra-contractual liability? At first glance, it seems natural to think that the will has an important role to play in connection with contractual responsibility. The contract, as forecasting device and outcome of the parties’ will, would interfere with the application of a regime which sanctions non- or improper performance. It is at least from this assertion that the validity of clauses of limitation or exemption of responsibility derives. The parties wanted the contract and their will is likely to alleviate their obligations, the amount of damages due in case of non-performance, etc. However, it appears possible to challenge this assumption by illustrating the weakening influence of the contractual will, influenced by various factors. Yet, there would be no room for will under the regime of extra-contractual liability. Since this type of liability derives from public policy, the parties’ will would play no part in it. Parties would therefore not be in a position to contractually restrict their respective liabilities and could not interfere with the application of the regime to which they are subject. Once again, it seemed possible to question this presupposition. Not only the will plays a role for the purpose of extra-contractual liability but such role could even be reinforced. Promoting the importance of the will under liability law would materialize through a voluntarism which would go beyond the contract itself and which would promote individual freedom through action in law
Dumery, Alexandre. "La faute de la victime en droit de la responsabilité civile." Aix-Marseille 3, 2007. http://www.theses.fr/2007AIX32050.
Full textThe fault of the victim is nowadays broken up. Torn between full exemption based on force majeure, and partial exemption grounded on fault, it is also dissolved in the midst of derogatory systems, such as risks acceptance or victim predisposition. This does not make its apprehension easier. Unity must be given back to this system. It has to rely on the link of causality while seeing to punish the victim’s reprehensible behaviour when the damage occurred. Therefore, the fault of the victim must find its place between those two necessities, taking interest only in situations in which an abnormal fact that had influence on the link of causality can strengthen the prosecution against the victim. This implies the restriction of the application of the risks acceptance theory, the replacement of force majeure to the benefit of exclusive cause, or at last the possibility to punish the victim for its behaviour following the damage
Boukhdoud, Bahaa. "La sanction du manquement contractuel." Thesis, Toulon, 2016. http://www.theses.fr/2016TOUL0111.
Full textThe subject of this thesis is the study of the sanctions of contractual beach. It is based on the comparative examination of this concept in the positive French and Lebanese Contract Law. Therefore, there are strong relationships between these two legal systems : French law has greatly inspired Lebanese law. our study is also based on the following dynamics ; reparation is generally presented by the main doctrine as the prevailing sanction in case of contractuel breach because as regards civil responsability, the tort and contractual liabilities are of the same nature. Our purpose is to prove that the performance of the contract is likely to be construed as the natural and logical sanction of the contractual breach and cannot be limited to the mere role of a secondary sanction of a contractual breach as assigned by a certain doctrine
Coffinet-Frétigny, Gaëlle. "L' indemnisation des dommages causés par une chose en matière contractuelle." Reims, 2008. http://theses.univ-reims.fr/exl-doc/GED00000842.pdf.
Full textThere are several characteristics in the damage caused by a thing. First of all, as objects are found in everyday life, damage is constantly increasing. Then, because of modern society, things are more and more sophisticated, therefore sources of more serious prejudices. Finally, confronted with the reparation of such damage, the victim finds it difficult, in a juridical system in which the fault must be proved, to establish the role of the object linked with a human act. Faced with such problems, the judges and the law intervene as far as contract is concerned. Positive law globally takes the specificities of this damage into account. It is different in the contractual domain, which experienced many various evolutions. For all that, the particularities of such damage are not taken as a whole. As a consequence, the contracting victims are unequally treated. Moreover, those particularities also exist with third victims. In that case, it seems that a change is necessary in the second domain, as it is showed in this thesis. A proposition is expounded: the creation of a general principle of indemnification for damage caused by a thing, a solution based on two juridical instruments: the involvement of a contractual responsibility based on a default to a security result obligation and the resort to a subsidiary guarantee fund
Moffet, Francoual Claire. "La responsabilite administrative extra-contractuelle : etude comparative du droit francais, canadien et quebecois." Paris 2, 1996. http://www.theses.fr/1996PA020083.
Full textIn both france and quebec, many rules have been elaborated to subject the public administration at a liability regime and hence to grant a protection to citizens. In france, these rules are the result of the conseil d'etat decisions, in wich the legislator has limited or widen theirs application. In quebec, only the latter was able to adopt these rules and has chosen to subject the state at civil law rules. The study and the comparison of these rules show us that, though both legal systems studied present many similarities, the french system proves nevertheless the most protective for people, so much in matter of liability for fault as without fault. However, this better protection is level-headed by a less generous indemnisation. Indeed, in spite of general rules without fundamental difference between this two systems, the indemnities granted by french courts, at least for moral loss looking a more subjective caracter, was clearly lower than those grant by the quebec courts. This inequality of treatment between french and quebec citizens is the result of the first orientation in the recognition of this liability : from principle in france, exceptionnal in quebec; also on the choice to consider, or not, the specific powers of the state and to protect the citizens in trying to reconcile the concerned interests and rights
Del, Cont Catherine. "Propriété économique, dépendance et responsabilité." Nice, 1993. http://www.theses.fr/1993NICE0021.
Full textIn spite of the seeming unity of ownership as a concept - that is, the right to ". . . Jouir et disposer des choses de la manière la plus absolue", numerous dissociations emerge. Regarding a number of cases, ownership merely remains a relation of belonging, for the". . . Libre faculté d'agir en maitre de la chose objet de son droit "(j. Dabin) is no longer available to the owner. Next to classic ownership, economic ownership coexists as well, ans is characterized through establishment of a network of command and dependance among those subjects to the laws who, formally speaking, are independant. That network tends to collectivize and spread the economic risk, while diluting liability. Those dissociations between economic power and liability may equally be observed in associative as well as contractual matters. The existence of splits within formal juridical categories pertaining townership leads to the following querry : the feasibility of setting up a specific liability system, detached from fault and flowing from the sole use of economic power. Therefore, on the one hand, relations of dependance have to be translated in juridical terms. On the other hand, damages caused by those economic telations have to be grasped through terms of risk. Then, the point is to define economic liability as : "l'endossement definitif" (josserrnd) of damages in the light of their associative bearing
Paillard-Cormier, Christine. "Le préjudice en droit administratif français : étude sur la responsabilité extra-contractuelle des personnes publiques." Paris 2, 2000. http://www.theses.fr/2000PA020111.
Full textThibierge, Catherine. "Nullité, restitutions et responsabilité." Paris 1, 1989. http://www.theses.fr/1989PA010281.
Full textThe rule of voidness, which is neither the state of contract, nor the right to criticize, consists in a punishement for the breach the law of contract, and leads to the voidance of its effects of tight as they are unlawful. It differs from the restitutions whose aim is to bring an end to the concret effects brought about by the carrying out of the contract. The difference of the concepts implies a difference between the actions which bring them into play. The responsability of the parties entering into a contract makes it possible to redressea tort arising from a contract which has been declared void. It cannot impede the principle or the range of the voidance or the principle of the restitutions. On the other hand, as its aim is to establish the patrimonial state of both parties, the law of torts should modify the range of restitutions
Schneider, André. "Essai sur le concept de droit à réparation." Université Robert Schuman (Strasbourg) (1971-2008), 1990. http://www.theses.fr/1990STR30021.
Full textWhen stating that every damage must be compensated by the person who caused it the drafters of the civil code linked the person responsible and his victim in one and the same legal relationship. This reciprocal relationship which contained in germ its own limits and contradictions marked the stages of the evolution. The right to compensation depends on the necessary existence of a tortious relation whose conditions are often determined by denatured notions and principles which - emptied of their normative function - are nowadays but legal tools of compensation. But the complexity of social relations and the diversity of accidents prevent the standardisation of the conditions of existence of this right to compensation. If its existence is not to be limited to a virtual one another legal relationship must be superimposed on the tortious relation : the indemifying relation. This relation can only be derived from the tortious relation without any condition of preliminary recognition - atttached to the financial position of the victim - which would only give rise to victimisation. The notion of the right to compensation is opposed to that of solidarity. Charity is the denial of law. The only conditions which can be accepted according to the principle of equality are those which enable the characterisation of the tortious relation from which the indemnifying relation is derived and which entitles to a certain type of indemnification. By reason of a concern for parallelism the victim is responsible to himself. The notion of extent of the right plays the part of a parasitical notion, as a consequence of the denaturation of the notion of liability. Therefore the victim must suffer a reduction of the content of his right in an exceptional way only : the solution is to be found in the requirement of a balance in the tortious relation
Manekeng, Tawali Joelle. "Essai sur la justice contractuelle : contribution à l'étude des fondements théoriques de la protection de la partie vulnérable." Doctoral thesis, Université Laval, 2015. http://hdl.handle.net/20.500.11794/26297.
Full textBrassier, Sophie. "La réinsertion et l'exécution de la peine d'emprisonnement : essai d'analyse contractuelle." Rennes 1, 2007. http://www.theses.fr/2007REN1G012.
Full textThe article number 707 of the code of criminal procedure from the law number 2004-204 March 9th 2004 relative to the adaptation of justice to the evolutions of crime, testifies to a new penal rationality during the execution of the sentence of detention. By placing reintegration in the acme of the aims assigned to the execution of sentences, it highlights one philosophico-ideological powerful paradigm : the concept of responsibility. This one, studied in all its dimensions, thanks to a crossed and appropriate analysis of the legal and psychocriminological approaches, reports the construction of relations of otherness. From then on, reintegration enters the ethical frame of a restoring justice and consequently reflects a social utopia. Beyond the first aspect of the analysis, the prisoner himself and the authorities in charge of the execution of the sentence, appear inevitably stakeholders of an atypical contract : the contract of application of sentences. This one strengthens the idea according to which everybody, parties but also third parties concerned by the contract, must contribute to reintegration in a purpose of social peace. No longer thought in terms of finality, reintegration is consequently considered as a slow, dynamic, interactive, but never completely achieved, process of reconstruction of otherness, which has to take its origin during the execution of the sentence of detention. That way, through the implementation of different strategies and offers made to the prisoner himself to mobilize differently in his existence, the latter has the potentiality, following the example of the victim himself, to find a new productive social position
Naugès-Fenioux, Sabine. "Le risque et le droit : contribution à l'étude d'un instrument juridique." Paris 1, 2001. http://www.theses.fr/2001PA010325.
Full textMiroslav, Vittorio. "L’autonomie de la responsabilité administrative en matière extra-contractuelle - Regard contemporain sur un principe classique." Thesis, Reims, 2016. http://www.theses.fr/2016REIMD003.
Full textThe autonomy of the administrative responsibility in extra-contractual is not necessarily acquired any more today. The multiplication of the springs of the administrative responsibility, next to the jurisprudence, that they are internal or supranational, had the effect of reopening this debate. Unmistakably, the autonomy is even today a reality. However, the law, the expression of the general will, and it in spite of its benefactions, tends to crumble a principle formerly solid. It would seem that in spite of his legitimacy, his beneficial effects for the victims, and his complementarity at times with the jurisprudence, the legislator, with the consent of the constitutional judge, has the possibility of breaking the principle of the separation of the authorities. In other springs, as the right of the Convention E.D.H., tend to impose a legal framework predefined without taking into account the French jurisdictional dualism. At the same time, the Court of justice to create aimed at Member states a real common law of the responsibility in extra-contractual material. All these combined factors, without forgetting the dispute of the environment today impacting on the rules of the administrative responsibility, lets us think that the border between the public law and the private law becomes more and more permeable. Sometimes, the autonomy, which is according to us the freedom of the administrative judge to apply rules which distinguish themselves or not from the civil liability, is not effective anymore yet. Indeed, the evoked sources sometimes generate a standard legal framework. At times, it is the competence of the administrative judge that is questioned for the benefit of the judicial judge in the name of the principle of a good administration of the justice
Ghiglino, Maxime. "La volonté précontractuelle : socle de la formation contractuelle." Thesis, Aix-Marseille, 2017. http://www.theses.fr/2017AIXM0483.
Full textThe pre-contractual willingness is the basis of contractual training. During the negotiation, the parties draw up their requirements and develop their volitions. The demonstrations of willingness at the initiation of the contract are therefore the outcome of a volitional process for each contracting party. In spite of appearances, the legal entitlement does not ignore the will of contracting parties at the negotiating phase. It is interested in the mechanisms of elaboration of this willingness. The perception of the pre-contractual willingness is the essential stake throughout the apprehension stage of the final deed. It is highly concerned by the demonstration’s ways of a willingness. These delineate punctually the willingness of their originator. It reassures by their perceptibility. However, these manifestations are not always unambiguous like expected. Indeed, the doubt innervate the pre-contractual stage and more particularly the manifestation phase of a willingness which emerges here. Confronted with this challenge, the legal entitlement must adapts. It engages to react by trying to adapt the outcome of these manifestations. In this way, the contract will ultimately become a partial resurgence of the manifestation of veritable willingness. It can therefore be comprehended as the imperfect expression of pre-contractual willingness at its source. In essence, the border between the pre-contractual and the contractual is tenuous. The analysis of the pre-contractual willingness and its manifestations reveals the existing links between these two notions
Faure-Abbad, Marianne. "Le fait générateur de la responsabilité contractuelle : contribution à la théorie de l'inexécution du contrat." Poitiers, 2002. http://www.theses.fr/2002POIT3012.
Full textLombardi, Jorge. "La responsabilité des tiers complices de la violation d'une obligation contractuelle dans le droit panaméen." Paris 2, 2000. http://www.theses.fr/2000PA020049.
Full textOlivier, Vanessa. "Les demandeurs et les défendeurs dans l'action en responsabilité dans le contrat de transport maritime de marchandises." Aix-Marseille 3, 1997. http://www.theses.fr/1997AIX32025.
Full textWhat are the questions which arise for any lawyer when beginning the examination of the suit ? - who has the right of suit ? - who is the defendant ? these are the two guiding principles in this thesis. Knowing the owner of the right of suit depends, in maritime law, on detailed examination. It is not enought to be simply a victim to be able to suit. Maritime law restricts action to strictly confined cases: only the shipper, the consignee and the insurer have this right of suit, but on the condition that they are defined as such in the bill of lading. For many years, the contentious matters concerning maritime transport has been based on the inflexible theory of the bill of lading. The consequence of this was that real shippers and real consignees had no right to suit, on the grounds that they were not mentioned in the bill of lading, despite the fact that they were the sole victims of any damages to the goods. Being then unable to subrogate to their insurer, the latter couldn't take a liability suit against the responsable for damages in order to obtain reimbursement for what had been paid out under the insurance coverage. Fortunately, case law has advanced since the famous "mercandia" affair. In order to identify the defendant of the suit, there is a basic principle upon which our study will centre: the carrier is always liable. The principal objective will therefore be to find the person who assume the carrier capacity, despite appearances made deceptive deliberately or otherwise by astuce combination of business and maritime law. The desire to control the whole of the carriage process, or simply the desire to survive in an extremely competetive environment, has changed the traditional face of the maritime carrier; the appearance of new actors in the maritime transport, and the transport in general, has rendered useless the methods used up till now to identify the maritime carrier. We shall reserve a place for the stevedores and shipping agents. Being in direct contact with the goods, the plaintiff is often tempted to issue a writ against them when the damages are their fault. But, once more, maritime law down the rigid principle according to which only those who have contracted their services have any right to suit against them